[Federal Register Volume 60, Number 90 (Wednesday, May 10, 1995)]
[Notices]
[Pages 24832-24833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11529]
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DEPARTMENT OF COMMERCE
[A-588-815]
Gray Portland Cement and Clinker From Japan; Court of
International Trade Decision and Suspension of Liquidation
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On March 28, 1995, in the case of Nihon Cement Co., Ltd. et
al. v. United States, Slip Op. 95-53 (Nihon), the United States Court
of International Trade (CIT) affirmed the Department of Commerce's (the
Department) redetermination on remand of the original investigation of
the antidumping duty order on gray portland cement and clinker from
Japan (56 FR 21658, May 10, 1991).
EFFECTIVE DATE: May 10, 1995.
FOR FURTHER INFORMATION CONTACT: Michelle Frederick or John Brinkmann,
Office of Antidumping Investigations, International Trade
Administration, U.S. Department of Commerce, Washington, D.C. 20230;
telephone (202) 482-0186 or 482-5288, respectively.
SUPPLEMENTARY INFORMATION:
Background
On May 10, 1991, the Department published in the Federal Register
the Antidumping Duty Order and Amendment to Final Determination of Gray
Portland Cement and Clinker from Japan. In that order, the Department
set forth its finding of weighted-average margins for two companies
during the period of investigation (December 1, 1989 through May 31,
1990), and announced its intent to instruct the U.S. Customs Service to
assess antidumping duties on all appropriate entries.
Subsequent to this determination, the two companies which were the
subject of the investigation filed lawsuits with the CIT challenging
the determination. Thereafter the CIT issued an order and Opinion dated
May 25, 1993, in Nihon Cement Co., et. al. v. United States, Court No.
91-06-00425, Slip Op. 93-80 (May 25, 1993) remanding the Department's
final determination so that the Department could: (1) Recalculate the
United States price for Onoda Cement Co.'s (Onoda) sales through Lone
Star Northwest's Oregon division; (2) articulate its underlying
reasoning regarding every element of 19 U.S.C. section 1677(16)(B)
(1988) in its product comparison analysis; (3) recalculate the dumping
margin assigned to Nihon Cement Co., Ltd. (Nihon) without collapsing
Nihon and the related entities Myojo Cement Co., Ltd. and Daiichi
Cement Co., Ltd; and (4) conduct a substantive investigation of the
service stations used by Onoda in its home market distribution system.
On September 10, 1993, the Department submitted its Final Remand
Results to the CIT. The defendant-intervenor (the petitioner)
subsequently filed a motion requesting reconsideration of the court's
order of remand in light of the decision in The Ad Hoc Committee of AX-
NM-TX-FL Producers of Gray Portland Cement v. United States, 13 F.3d
398 (Fed. Cir. 1994) (Ad Hoc Committee). In that decision, the Ad Hoc
Committee court held that the Department had no inherent, ``gap
filling'' authority to adjust for home market pre-sale movement
expenses. Thus, the CIT remanded the Department's adjustment for home
market pre-sale movement expenses for both Nihon and Onoda. In
performing the instant remands, however, the CIT agreed with the
Department that the authority exists to make such an adjustment to
foreign market value (FMV) under the circumstance-of-sale provision of
the Department's regulations (19 C.F.R. 353.56). Under this regulation,
the Department will make the adjustment to FMV only if the expenses are
determined to be directly related to the sales under investigation. To
determine whether pre-sale movement expenses are direct, the Department
examines the respondent's pre-sale warehousing expenses because the
pre-sale movement charges incurred in positioning the merchandise at
the warehouse are considered, for analytical purposes, to be
``inextricably linked'' to pre-sale warehousing expenses.
The Department's remand determination to deduct these home market
pre-sale movement expenses [[Page 24833]] from FMV with respect to
Nihon was affirmed because, consistent with 19 C.F.R. 353.56, these
expenses were demonstrated to be direct expenses. Similarly, the
Department's remand determination not to deduct the expenses from FMV
associated with Onoda purchase price transactions was affirmed because
these expenses were indirect expenses. With respect to Onoda's
exporter's sales price comparisons, the court affirmed the Department's
decision not to deduct these from FMV, but to include them in the pool
of home market indirect expenses to offset indirect expenses in the
U.S. market.
By order dated May 18, 1994, the CIT vacated and dismissed the May
25, 1993, remand with regard to the following issues: (1) The
recalculation of United States Price for Onoda's sales through Lone
Star Northwest's Oregon division; (2) the articulation of the
Department's underlying reasoning regarding every element of 19 U.S.C.
1677(16)(B) (1988) in its product comparison analysis; and (3) the
conducting of a substantive investigation of the service stations used
by Onoda in its home market distribution system.
On July 5, 1994, the Department submitted its Final Results of
Redetermination Pursuant To Court Remand for Nihon. On September 8,
1994, the Department submitted its Final Results of Redetermination
Pursuant to Court Remand with regard to Onoda and the ``All Others''
rate. The parties subsequently filed comments upon the results of the
Department's remand determinations. The Department responded to the
parties' comments on January 6, 1995, requesting that the CIT again
remand this action in order to provide the Department an opportunity to
reexamine the calculation of Nihon's margin by taking into account the
October 3, 1990, Supplemental Response submitted by Nihon during the
original investigation. By order dated January 19, 1995, the CIT
sustained the Department's remand determination with respect to the
calculation of Onoda's margin, and ordered this action remanded to the
Department for reconsideration of its calculation of Nihon's margin.
The Department submitted its Final Results of Redetermination Pursuant
To Court Remand on February 16, 1995, that determined a recalculated
weighted-average antidumping duty rate of 69.89 percent for Nihon, and
70.23 percent for ``All Others.'' Pursuant to the September 8, 1994,
Final Results of Redetermination Pursuant to Court Remand, the revised
weighted-average antidumping rate for Onoda is 70.52 percent. The CIT,
in Nihon, affirmed all redeterminations and dismissed this action on
March 28, 1995.
Suspension of Liquidation
In its decision in Timken Co. v. United States, Court No. 89-1489
(January 4, 1990) (Timken), the Federal Circuit held that the
Department must publish a notice of a decision of the CIT or the
Federal Circuit which is not ``in harmony'' with the Department's
determination. Publication of this notice fulfills this obligation. The
Federal Circuit also held that in such a case, the Department must
suspend liquidation until there is a ``conclusive'' decision in the
action. The option of appealing this decision is being weighed, and a
``conclusive'' decision can not be reached until the opportunity to
appeal expires, or any appeal is decided by the Federal Circuit.
Therefore, the Department will continue to suspend liquidation pending
the expiration of the period to appeal or pending a final decision of
the Federal Circuit if Nihon is appealed.
Date: May 4, 1995.
Paul L. Joffe,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 95-11529 Filed 5-9-95; 8:45 am]
BILLING CODE 3510-DS-P
